RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 July 2006
      DOCKET NUMBER:  AR20050017368


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen Raub                    |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Peguine Taylor                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to an
honorable discharge or a general under honorable conditions discharge.

2.  The applicant states he served in Germany for over three years and
served in Vietnam for one year and five months.  He states he suffered two
separate injuries in Vietnam in which he received awards of the Purple
Heart.  He was told that he had to return to Vietnam.  As a result of the
previous experiences, he went AWOL [absent without leave] to avoid bearing
that again.  He regrets this conduct.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 July 1971.  The application submitted in this case is dated
23 November 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 30 March 1961.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 111.00 (Light Weapons Infantryman).
 He was assigned to Germany in August 1961 and was promoted to private
first class on 9 August 1962.  The applicant was honorably discharged on 7
September 1962 for the purpose of immediate reenlistment.  He completed 1
year, 5 months and 8 days of active military service during this period.

4.  The applicant reenlisted on 8 September 1962 for a period of six years.


5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) on the applicant’s DA Form 20 (Enlisted
Qualification Record) indicates he was AWOL from 25 October 1962 to
25 October 1962.  There is no record of nonjudicial punishment for this
offense.
6.  On 13 July 1963, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 7
July 1963 to 10 July 1963.  His punishment consisted of a reduction to
private E-2; restriction to the company area for 14 days; and 14 days extra
duty.

7.  On 27 July 1963, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for failing to go to his appointed place of duty.  His
punishment consisted of a forfeiture of $27.00; restriction to the company
area, place of duty, mess hall, and chapel for 14 days; and performance of
extra duties for 14 days.

8.  On 25 February 1964, the applicant was convicted by a summary
court-martial of being AWOL from 26 January 1964 to 31 January 1964 and
from 5 February 1964 to 6 February 1964.

9.  On 15 May 1964, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being absent from his unit from 2400 hours on 14 May
1964 to 1600 hours on 15 May 1964.  His punishment consisted of a
forfeiture of $36.00; restriction to the Company B area; and 14 days extra
duty.

10.  The applicant departed Germany on 10 August 1964 and was reassigned to
the continental United States.

11.  The applicant was reassigned to Vietnam on 16 September 1965.  His DA
Form 20 shows he was assigned to Company C, 2nd Battalion, 28th Infantry.

12.  The applicant was awarded the Purple Heart for wounds received in
action on 12 January 1966 by Headquarters, 1st Infantry Division General
Orders Number 139 dated 22 January 1966.

13.  On 1 March 1966, the applicant was convicted by a special court-
martial, contrary to his plea, of being AWOL from 28 October 1965 to 26
December 1965. He was sentenced to confinement at hard labor for three
months and a forfeiture of $56.00 pay per month for six months.

14.  On 15 July 1966, the applicant was convicted by a special court-
martial, pursuant his plea of guilty, of being AWOL from 18 May 1966 to 20
June 1966.  He was sentenced to confinement at hard labor for two months
and a forfeiture of $40.00 pay per month for six months.  The portion of
the sentence pertaining to confinement was suspended for two months.

15.  The applicant was awarded the Purple Heart (First Oak Leaf Cluster)
for wounds received in action on 25 September 1966 by Headquarters, 1st
Infantry Division General Orders Number 2471 dated 26 September 1966.
16.  The applicant departed Vietnam in February 1967.

17.  On 14 February 1968, the applicant was convicted by a special court-
martial, pursuant his plea of guilty, of being AWOL from 6 October 1967 to
9 January 1968.  He was sentenced to confinement at hard labor for six
months.  On 23 April 1968, the sentence to confinement at hard labor for
six months was suspended for six months.

18.  The applicant’s DA Form 20A (Insert Sheet to DA Form 20) shows he was
AWOL from 7 May 1968 to 14 June 1970; 27 July 1970 to 3 April 1971; and
2 May 1971 to 2 May 1971.  His DA Form 20A shows he was in the hands of
civil authorities from 4 April 1971 to 20 April 1971.  There is no record
of nonjudicial punishment for these offenses.

19.  The applicant’s discharge packet is not available.  However, his DD
Form 214 shows he was discharged on 6 July 1971 under the provisions of
Army Regulation 635-200, for the good of the service with issuance of an
under other than honorable conditions (undesirable) discharge.  He
completed 4 years, 10 months and 2 days of active military service during
the period under review.  He had 1427 days of lost time due to AWOL and
confinement.

20.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

21.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

22.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.



23.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, the
applicant's voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, to avoid trial
by court-martial, is presumed to have been administratively correct and in
conformance with applicable regulations.

2.  Although the applicant's discharge packet is not available, it is
presumed the separation authority appropriately directed issuance of an
undesirable discharge based on his overall record during his last period of
service.

3.  The applicant’s service record shows he received three Article 15s and
one summary court-martial prior to his tour in Vietnam.  He later received
three special courts-martial.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel for an upgrade to a general or
honorable discharge.

4.  The applicant’s service records show he received two Purple Hearts
during his tour in Vietnam.

5.  There is no evidence of record which indicates the type of discharge
issued to the applicant was in error or unjust.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 July 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
5 July 1974.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

AR______  LD______  PT______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  Allen Raub____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017368                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710706                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10 . . . . .         |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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